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Praxis Capital Ltd v Burgess: be practical

In an application made pursuant to CPR 3.1(7) to vary or revoke an order in Praxis Capital Ltd v Burgess, the claimant sought an order for delivery up of confidential material that it alleged was in the defendant’s possession. The defendant had been employed by the claimant company, and these materials had been obtained in the course of that employment. The application was made in respect of an earlier final order dated 2 June 2015 by which the claimant’s original claim for injunctive relief and delivery up of confidential documents was dismissed.

In 2017, the claimant had become aware, it said, of further reasons to believe that the defendant had nonetheless retained confidential material obtained in the course of his employment. In its application of January 2018, it argued that the court could proceed in reliance on CPR 3.1(7) without the need for a further CPR 7 claim.

The claimant relied upon Latimer Management Consultants Ltd and others v Ellingham investments Ltd, which was an application in respect of a costs order rather than a substantive matter between the parties. The claimant had also referred the court to Tibbles v SIG plc (t/a Asphaltic Roofing Supplies), in which the Court of Appeal, whilst recognising the court’s broad discretion, declined to decide whether CPR 3.1(7) might apply to a final order.

The judge, however, preferred the reasoning of Mr Murray Rosen QC in Clutterbuck & another v A, on which the defendant had relied. In Clutterbuck, the Deputy Judge developed on the reservations expressed by the Court of Appeal in Tibbles, which was that:

“… the only way in which final orders can be challenged… save in exceptional circumstances where it has retained jurisdiction and power over the performance of those final orders, is, notwithstanding the allegations of fraud, by way of an appeal or by way of separate fresh proceedings seeking to set aside an order or final orders and judgments…”

The judge therefore declined to vary the final order under CPR 3.1(7). In the alternative, the claimant had offered an undertaking to issue a fresh claim under CPR 7, and had requested appropriate directions from the court. This, too, was declined: the judge noted that the claimant had not made a separate claim in fraud, nor was there any urgency that would justify the making of such an order.

The claimant was not precluded from making a separate claim, but the application to vary under CPR 3.1(7) was dismissed.

Practical points

CPR 3.1(7), as suggested in Lloyd’s Investment (Scandinavia) Ltd v Ager-Hanssen, offers no real guidance to the limits of its jurisdiction, although the case law had previously confirmed a distinction between interim and final orders.

Praxis confirms that the court’s jurisdiction should not be exercised in relation to a final order where a party seeks to challenge the substantive order on substantive matters in dispute between the parties.

Points to consider where there are reasons to seek to revisit a dispute that has been the subject of a final order:

  • Consider and use one’s right of appeal. The claimant had been given an extension of time to seek permission to appeal from the Court of Appeal, but had not exercised this
  • Issue fresh proceedings. Although the claimant was unsuccessful in its application, it was not discouraged from issuing proceedings under CPR 7.
  • Consider the urgency of the matter. The judge noted that the claimant had had reason to believe that the defendant had retained or used confidential material almost 12 months before the application was made, and made clear that the question of urgency was crucial in his decision not to accept the claimant’s alternative undertaking to issue fresh proceedings under CPR 7.
  • Notwithstanding the attraction of revisiting a claim concluded on the same facts, CPR 3.1(7) is not an appropriate forum for consideration of fresh evidence, including oral and expert evidence. Without appropriate oral evidence, the judge in Praxis could make no finding in relation to the documentary evidence before him. The judge had also noted the claimant’s reliance on expert evidence for which no permission had been sought from the court. A trial was the clear and preferable option for both parties and the tribunal.
39 Essex Chambers Hannah McCarthy

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